TERMS & CONDITIONS OF SALE
Cornish Curtains Ltd - Terms and conditions for the sale of goods
1.1 In these conditions (unless the context otherwise requires):
(a) Buyer means the person, firm or company with whom the Contract is made;
(b) Company means Cornish Curtains Limited (Company Number: 11691274) trading as also (where the context so permits) its assigns and any sub-contractor for the said company;
(c) Company's Premises means the premises mentioned in the Company's quotation or other contractual document in respect of the Goods or if not so mentioned means the Company's premises at Kiln Quay House, 43 Trefusis Rd, Flushing, Cornwall TR11 5UB;
(d) Contract means the contract between the Buyer and the Company for the sale and purchase of the Goods;
(e) Goods means the goods (or any instalment or part of them) to be supplied pursuant to the Contract.
1.2 Words in the singular shall include the plural and vice versa, references to any gender shall include the others and references to legal persons shall include natural persons and vice versa.
1.3 The headings in these conditions are intended for reference only and shall not affect their construction.
2.1 These conditions shall apply to the Contract to the exclusion of any other terms and conditions contained or referred to in any order, letter, form of contract or other communication sent by the Buyer to the Company and the provisions of these conditions shall prevail unless expressly varied in writing and signed by a director on the Company's behalf.
2.2 Any concession made or latitude allowed by the Company to the Buyer shall not affect the strict rights of the Company under the Contract.
2.3 If in any particular case any of these conditions shall be or be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect.
Notwithstanding that the Company may have given a detailed quotation no order shall be binding on the Company unless and until it has been accepted in writing by the Company.
4.1 Unless otherwise agreed by the Company in writing:
(a) the price payable for Goods shall be as per the last written quote supplied by the Company current and valid at the date of receipt for order;
(b) in the case of an order for delivery by instalments the price payable for each instalment shall be the quoted price of the Company current at the date of despatch of such instalment;
(c) the Company's prices quoted are subject to adjustment to take account of any variation in the Company's costs including (but not limited to) variations in wages, the cost of materials, exchange rate fluctuations, alteration of duties and other costs since the date of the Company's quotation or (if no quotation is issued the Buyer's order if this has been accepted in writing). The Company accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted and the invoice so adjusted shall be payable as if the price set out therein were the original contract price.
4.2 All prices (unless otherwise specifically stated) are exclusive of value added tax and this will be charged by the Company and will be payable by the Buyer at the appropriate rate.
5 Additional costs
The Buyer shall indemnify the Company in respect of any loss, cost or expense incurred by the Company as a result, directly or indirectly, of the Buyer's instructions or lack of instructions or through any failure or delay whatsoever in taking delivery or through any other act, neglect or default on the part of the Buyer, its servants, agents or employees.
6 Intellectual property
The Buyer shall indemnify the Company against all costs, claims, losses, expenses and damages incurred by the Company or for which it may be liable due to or arising directly or indirectly out of any infringement or alleged infringement of patents, trade marks, copyright, design right or other intellectual property right occasioned by the importation, manufacture or sale of the Goods if made to the specification or special requirements of the Buyer.
7 Terms of payment
7.1 Unless otherwise agreed by the Company in writing the Buyer shall pay for the Goods in cash on acceptance of the Buyers order by the Company.
7.2 If the Goods are delivered in instalments the Company shall be entitled to invoice each instalment at dates of the Companies choosing and payment shall be due in respect of each instalment prior to delivery.
7.3 If upon the terms of the Contract the price shall be payable by instalments or if the Buyer has agreed to take specified quantities of Goods at specified times a default by the Buyer in the payment of any due instalment or the failure to give delivery instructions in respect of any quantity of Goods outstanding shall cause the whole of the balance of the price to become due forthwith.
7.4 The price of the Goods shall be due in full to the Company in accordance with the terms of the Contract and the Buyer shall not be entitled to exercise any set-off, lien or any other similar right or claim.
7.5 The time of payment shall be of the essence of the Contract.
7.6 Without prejudice to any other rights it may have the Company is entitled (both before and after any judgment) to charge interest at a rate equal to the higher of the interest rate payable on court judgements or 5% above the base rate from time to time of National Westminster Bank plc on overdue payments of the price of the Goods or the price of any instalments thereof.
8.1 All times dates or periods given for delivery of the Goods are given in good faith but without any responsibility on the Company's part.
8.2 Time of delivery shall not be of the essence of the Contract.
8.3 Any period for delivery shall be calculated from the time of the Company's acceptance of the Buyer's order or from the Company's receipt of all information necessary to enable the Company to manufacture or procure the manufacture of the Goods (whichever shall be the later).
8.4 Where the Goods are handed to a carrier for carriage to the Buyer or to United Kingdom port for export any such carrier shall be deemed to be an agent of the Company and not of the Buyer for the purposes of sections 44, 45 and 46 of the Sale of Goods Act 1979.
8.5 The Buyer agrees that section 32(3) of the Sale of Goods Act 1979 shall not apply to Goods sent by the Company.
8.6 No liability (whether in contract or for negligence or otherwise howsoever) for loss of or damage to the Goods occurring prior to delivery or for any claim that any item delivered pursuant to the Contract is defective or is otherwise not in accordance with the Contract (being a defect or loss, damage or non-compliance which would be obvious upon a reasonable inspection of the Goods) or for non-delivery will attach to the Company unless claims to that effect are notified in writing by the Buyer to the Company (and in the case of claims for loss, damage or non-delivery with a copy to the carrier if the Company's own vehicles have not been used to deliver the Goods):
(a) within seven days of delivery for loss, damage, defect or non-compliance with the Contract; or
(b) within five days of the date of the invoice for non-delivery.
8.7 In the event of a valid claim for defect, loss, damage, or non-compliance with the Contract or non-delivery the Company undertakes at its option either to repair, reprocess or replace the items concerned at its expense but shall not be under any further or other liability in connection with such non-delivery, loss, damage or non-compliance.
8.8 If the Buyer shall fail to give notice in accordance with condition 8.6 above the items delivered shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly and all claims in respect of non-delivery, loss, damage, defect or non-compliance shall (save as set out in condition 16 below) thereafter be wholly barred.
8.9 If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Company may at its sole discretion without prejudice to its other rights and for such period as the Company may determine store the Goods at the Buyer's risk and take all reasonable steps to safeguard and insure them at the Buyer's cost, provided that the Buyer shall be immediately informed thereof.
8.10 The Company shall have the right to make delivery by instalments of such quantities and at such intervals as it may decide, and any express provision as to instalments in the Contract shall be in addition to and not in derogation of this right.
9.1 Goods supplied in accordance with the Contract cannot be returned without the Company's prior written authorisation. Duly authorised returns shall be collected by the Company's carrier and returned to the Company's Premises at the Buyer's expense.
9.2 The Company shall have the right, in its sole discretion and without prejudice to any other rights it may have under this Contract, to charge to the Buyer all sums incurred by the Company both under condition 9.1 above and in returning Goods to the Buyer if either;
(a) the Company considers Goods returned to have been damaged in any way whilst in the possession or at the risk of the Buyer; or
(b) the Company considers those Goods supplied to the Buyer under this Contract to match in all material respects those ordered by the Buyer.
9.3 Nothing in this condition 9 shall affect the rights and liabilities of either party under condition 16 of this contract concerning defective goods.
10.1 All orders are subject to a carriage charge and delivery will be made by an agent of the Companies choosing.
10.2 Where the Buyer requests delivery in a manner other than that selected by the Company in condition 10.1 above, any difference in price shall be charged to the Buyer's account.
11 Passing of title and risk
11.1 From the time of delivery the Goods shall be at the Buyer's risk who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the Company's property until all payments to be made by the Buyer under the Contract and any other contract between the Company and the Buyer and on any other account whatsoever have been made in full and unconditionally. Whilst the Company's ownership continues the Buyer shall keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession as bailee for the Company.
11.2 The Buyer may only re-sell the Goods to the Buyer's customers in the ordinary course of the Buyer's business as a fiduciary and trustee for the Company. In the event of any resale by the Buyer of the Goods the Company's beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefor shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the Buyer and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Company's moneys.
11.3 Without prejudice to the equitable rules as to tracing, in the event of failure to pay the price in accordance with the Contract the Company shall have power to re-sell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Buyer to remove the Goods.
11.4 Pending payment of the full purchase price of the Goods the Buyer shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the Buyer in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. The policy shall bear an indorsement recording the Company's interest.
12 Conditions and warranties
12.1 The Contract shall not constitute a sale by description or sample.
12.2 Any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise howsoever) as to the quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Company) or as to the correspondence of the Goods with any description or sample are hereby expressly negatived.
13 Supplied Goods
13.1 Goods supplied by the Company do not meet any particular fire or flame proofing specifications and the Buyer shall notify the Company at the time of placing any order if the meeting of any such specification is required.
13.2 The Company will not be liable for any defect in the finish or colour of the fabric used in the Goods which are affected by the above-mentioned fire and flame proofing treatment.
13.3 Fabrics such as silks and linens often have natural characteristics. The Company cannot accept complaints or offer refunds for such natural occurrences. With both printed and woven fabrics every effort is made to avoid irregularities, occasionally they may occur. Fabric is not completely stable and it cannot be taken for granted that, whether printed or woven, the pattern will be completely ‘square’ on the cloth. Fabrics are not guaranteed against colour fading. Unless otherwise stated in the product description we advise that all fabrics are dry cleaned.
13.4 Most fabrics tend to shrink when laundered, cleaned or to a lesser extent whilst in use, in certain atmospheric conditions. Atmospheric conditions may vary in different weather and seasons. We cannot control these conditions and therefore cannot accept responsibility for movement or the general appearance in curtains or blinds when hung. Heavier fabrics may react to changing humidity; and the control of humidity in a room remains the customer’s responsibility.
13.5 For curtains we pattern match from the bottom up and for blinds from the top down.
13.6 Roman blinds supplied with blackout lining use the blackout lining as an interlining and it is sandwiched between the face fabric and the lining fabric. To secure the three layers we use a ‘stab stitch’ which can sometimes cause light to filter through where it has been stitched.
13.7 The company shall not be responsible for any damage to walls, windows, reveals, furnishings, fabrics or other building/contents when such items are in poor or defective condition. The client should ensure that prior to fitting, any defects are made good and the Company is informed.
14 Buyer's Drawings and Information
14.1 The Company shall not be liable for imperfect work caused by any inaccuracies in any drawings, bills ofquantities, measurements or specifications supplied by the Buyer.
15 Intellectual Property and Copyrights
15.1 All designs, sketches, quotes and other commercial material are submitted by the Company in confidence and, unless otherwise agreed in writing, they and the copyright in them and the right to reproduce or supply any such information to third parties is prohibited.
16 Defective Goods
16.1 In substitution for all rights which the Buyer would or might have but for these conditions the Company undertakes in the case of Goods manufactured by the Company that if within one month of delivery of any item of the Goods a defect in materials or workmanship appears therein being a defect which would not be obvious on reasonable inspection thereof (whether such an inspection was carried out or not) it will at its own discretion either credit to the Buyer the full price paid by the Buyer to the Company for such item or repair it or supply a replacement thereof free of charge at the place of delivery specified by the Buyer for the original Goods provided that in any case the original Goods have been accepted and paid for.
16.2 In the case of Goods not manufactured by the Company, the Company will pass on to the Buyer to the extent that it is able any benefits obtainable under any warranty given by the Company's supplier provided that the Goods have been accepted and paid for.
16.3 In order to exercise its rights under this condition the Buyer shall notify the Company within seven days of the date when such defect appeared or ought reasonably to have been discoverable and shall at the Company's written request and cost, return the defective Goods to the Company's Premises for inspection.
16.4 If, upon reasonable inspection by the Company, the Company considers, in its sole discretion, that Goods collected under condition 16.3 above are free from material defects then those Goods may be returned to the Buyer at the Buyer's expense.
16.5 The Company shall have the right, in its sole discretion and without prejudice to any other rights it may have under this Contract, to charge to the Buyer all sums incurred by the Company under conditions 16.3 and 16.4 above.
16.6 Nothing herein shall impose any liability upon the Company in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Buyer, its servants or agents including in particular (but without prejudice to the generality of the foregoing) any failure by the Buyer to comply with any recommendations of the Company as to storage and handling of the Goods.
16.7 Where the Goods are for delivery by instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.
16.8 Nothing herein shall have the effect of excluding or restricting the liability of the Company for death or personal injury resulting from its negligence in so far as the same is prohibited by United Kingdom statute.
16.9 For the avoidance of doubt the possibility of shrinkage should always be taken into account when ordering the Goods and an allowance of at least 5% is recommended. The Company accepts no liability for shrinkage of the Goods with the percentages allowed as stated above.
16.10 Whilst every effort is made to achieve the closest possible colour and/or pattern match the Goods are sold on the understanding that a perfect match between batches or co-ordinated products made out of the Goods cannot be guaranteed and nothing herein shall impose any liability on the Company for such failure.
17 Buyer's specification
The Company shall not be liable for imperfect work caused by any inaccuracies in any drawing, bill of quantities or specification supplied by the Buyer.
18 Consequential loss
The Company shall not be liable for any costs, claims, damages or expenses arising out of any tortious act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.
19 Default or insolvency of Buyer
If the Buyer shall be in breach of any of its obligations under the Contract or if any distress or execution shall be levied on the Buyer's property or assets or if the Buyer shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Buyer is a company) if any resolution or petition to wind up such company shall be passed or presented or if a receiver, administrative receiver or administrator of the whole or any part of such company's undertaking property or assets shall be appointed the Company in its discretion and without prejudice to any other right or claim may by notice in writing determine wholly or in part any and every contract between the Company and the Buyer or may (without prejudice to the Company's right subsequently to determine the Contract for the same cause should it so decide) by notice in writing suspend delivery or any further deliveries (as the case may be) of Goods until any default by the Buyer be remedied.
20 Limitation of liability
The aggregate liability of the Company (whether in contract or for negligence or breach of statutory duty or otherwise howsoever) to the Buyer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the price of the Goods.
No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the Company's agents or employees shall be construed to enlarge, vary or override in any way any of these conditions.
22 Force majeure
The Company shall be entitled to delay or cancel delivery or to reduce the amount of Goods delivered if and to the extent that it is prevented from or hindered in or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its control including (but not limited to) strikes, lock-outs, accidents, illness, weather, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal sources of supply.
Save as provided in conditions 19 and 22 hereof contracts, or goods or services within those contracts, may not be cancelled or changed by the Customer except by agreement in writing of both parties and upon the payment to the Company of such amount as may be necessary to indemnify the Company against all loss and profits resulting from the said cancellation.
The Company shall be entitled to delay or cancel delivery or to reduce the amount of Goods delivered to the Customer and then give a refund to the Customer of any items or services so cancelled.
The Company may assign the Contract with the Buyer or sub-contract the whole or any part thereof to any person, firm or company.
25 Proper law
The Contract shall in all respects be governed by and construed in accordance with English law and shall be deemed to have been made in England and the Buyer and the Company agree to submit to the non-exclusive jurisdiction of the English courts and it is agreed that a court in Truro, Cornwall is a convenient forum for the hearing of any dispute.
26 Personal Data
By borrowing design books and or contacting us through our showroom, website or via email (or other form of communication) we consider you to be a customer. By supplying us with personal details (name, address, telephone number, email address) we will use this to provide you with goods or service. We may pass on your details to our suppliers (in the provision of supplying samples or goods directly to you). Their use of your data is clearly outlined on their individual websites. We will retain your details for our own marketing activity and for ongoing administration of our business.